PEOPLE
v.
BROWN BROTHERS EQUIPMENT COMPANY, INC.
Calendar No. 8, Docket No. 51,546.
Supreme Court of Michigan.
Decided July 21, 1967.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Donald L. Reisig, Prosecuting Attorney, and James R. Ramsey, Assistant Prosecuting Attorney, for the people.
Anderson, Carr & Street, for defendant.
KELLY, J.
Appellant presents one question:
"Does the motor vehicle code require knowledge or scienter on the part of the owner or lessee of an overloaded vehicle to support the prosecution of such person under CLS 1961, § 257.724(c) as amended by PA 1964, No 222 (Stat Ann 1965 Cum Supp § 9.2424)?"
*365 The Court of Appeals answered this question in the affirmative and appellant claims the Court erred because it concluded "that it is necessary to read section 716 together with sections 722 and 724 in order to arrive at the proper construction of the statute relative to the need for knowledge of the violation of the weight provisions set forth in section 722."
These three sections of the motor vehicle code to which appellant refers are set forth in the Court of Appeals' decision, reported in 3 Mich. App. 618.
In People v. Ward (1961), 364 Mich. 671, a warrant was issued accusing defendant of guilt under the presently considered section 724 of the Michigan motor vehicle code. This Court granted leave to appeal from the trial court's order granting defendant's motion to quash.
The syllabus in People v. Ward, supra, reads:
"AUTOMOBILES OVERLOADED EQUIPMENT EQUALLY DIVIDED COURT.
"Order quashing complaint against lessee of overloaded truck that was operated upon the public highway in violation of statute is affirmed by an equally divided court (CLS 1956, § 257.724)."
The question appellant asks this Court to answer in the present appeal is similar to the question that failed to obtain a majority answer by those members of the Court who participated in the People v. Ward decision six years ago.
The reasons for the division in People v. Ward are ably set forth in two opinions by two present members of this Court.
We conclude that the motor vehicle code does "require knowledge or scienter on the part of the owner or lessee of an overloaded vehicle to support the prosecution of such person under CLS 1961, § 257.724(c) as amended by PA 1964, No 222," and, *366 therefore, the judgment of the Ingham circuit court and of the Court of Appeals is affirmed. No costs.
DETHMERS, C.J., and T.M. KAVANAGH, ADAMS, and BRENNAN, JJ., concurred with KELLY, J.
SOURIS, J. (dissenting).
The pertinent facts of this case parallel those of People v. Ward (1961), 364 Mich. 671. Our decision in that case would be dispositive of this but for the fact that decision in Ward was by equal division of a bobtailed[*] Court. In view of that fact and of the recent changes in our personnel, leave was granted in this case of Brown Brothers to resolve authoritatively the legal dispute which divided this Court in Ward.
Mr. Justice KELLY, having reviewed the opinion submitted by Mr. Chief Justice DETHMERS in Ward, now subscribes (having abstained from participation in the Ward decision) to the Chief Justice's view. That view was that legislative omission of a scienter requirement from the pertinent sections of the statute here involved is not a sufficient manifestation of the legislature's intent to hold criminally liable the owner or lessee of an overloaded motor vehicle operated on the public highways of this State absent his knowledge thereof.
My view remains as I expressed it in my opinion in People v. Ward, supra, pp 671-675. It may be summarized by quotation therefrom (p 673):
"The most superficial examination of the language of this subsection suggests that the legislature doubtless intended to make owners and lessees of overloaded trucks violators thereof upon mere showing of the fact of ownership or lease, plus, of course, the fact that the owned or leased truck has been apprehended on a public highway with a load in excess *367 of statutory limits. The offense charged is a misdemeanor. It is punishable only by a fine, calculated by multiplying the weighed overload by so many cents per pound graduated upward to the extent of such weighed overload. Proof of scienter is not made a requirement for proof of violation of this subsection. Our conclusion is substantiated by comparison of the language of subsection (c) with the language of subsections (d) and (f) of section 724."
The references to subsections (d) and (f) of section 724 were to illustrate the fact that when the legislature desired to require proof of scienter, it said so. Significantly, when scienter is made an element of an offense under section 724, and, as well, under section 716, a jail sentence as well as a fine is prescribed; in subsection (c) of section 724, however, where violation thereof does not depend upon proof of scienter, only a fine penalty is provided.
I would reverse and remand for further proceedings, but without costs.
BLACK and O'HARA, JJ., concurred with SOURIS, J.
NOTES
[*] Only six of the eight Justices of the Court participated in the decision of People v. Ward.